Dole Sues Bananas! Filmmaker

The fruit company turns up the heat in its dispute over claims that Nicaraguan workers were made sterile by a pesticide

The reviews are in, and executives at Dole Food really don't like Fredrik Gertten's new movie Bananas! Just why they don't was made clear in a July 8 lawsuit the company filed against the Swedish filmmaker in Los Angeles Superior Court that alleges the film is false and defamatory. The movie, a documentary, chronicles a crusade by Los Angeles personal injury lawyer Juan J. Dominguez to win compensation in U.S. courts for thousands of workers who claim they were made sterile after exposure to the pesticide DBCP on Dole-operated banana farms in Nicaragua.

That heroic account, Dole says in its complaint, is "blatantly false." Exhibit A in its argument: findings by Los Angeles Superior Court Judge Victoria G. Chaney that most, if not all, of the Nicaraguan workers' claims were fabricated. Judge Chaney presided over the litigation that is the focus of Bananas!, and while she did not formally issue her findings until June 17, she made them known at a hearing in April.

Gertten, Dole says, ignored repeated requests by the company to modify the film in light of the judge's conclusions. It also sought corrections of what the company claims are other inaccuracies. The film, for example, refers to banana workers being killed by DBCP, and even opens with a scene showing the burial of a worker. None of the lawsuits filed against Dole ever alleged that exposure to the pesticide caused death.

Companies now more willing to fight back

Bananas! premiered at the Los Angeles Film Festival on June 23, and Dole alleges that Gertten plans to screen it at additional festivals and release it in movie theaters in the fall. Dole, based in Westlake Village, Calif., is seeking a ban on further showings of the film and on display of the film's promotional Web site.

A July 9 statement released on behalf of Gertten by his Oakland attorney, Richard J. Lee, calls Dole's suit "without merit" and says it is "the latest in a continued line of intimidating harassment by a multinational corporation aimed at a small, independent film and its filmmakers." It adds that "in all screenings of the film which have occurred to date we have disclosed the judge's findings."

It used to be that corporations were wary of taking on the media in lawsuits. "The old school of thought," says crisis communications expert Eric Dezenhall, was that "you should never pick a fight with anybody who buys ink by the barrel"—the idea being that even big companies could be outgunned on the battlefield of publicity. But, he says, that calculus has changed, and companies are now more willing to fight back.

Putting Theaters on Notice

Just by filing its lawsuit, Dole may have accomplished one major objective, says Dezenhall, who heads Dezenhall Resources in Washington: putting theaters and Web sites on notice that if they show Bananas!, they will be drawn into "some very ugly litigation."

From a public relations standpoint, Dole's decision to pursue a defamation lawsuit carries the risk of attracting even more attention to the very thing it says is injurious to the company. "We did take that into account," says Theodore J. Boutrous, Jr., a partner at Gibson, Dunn & Crutcher in Los Angeles and Dole's lead lawyer on the suit. But, he says, "we really felt we had no choice but to file a suit to protect Dole's reputation."

Boutrous and Gibson Dunn have a long history of representing media companies in First Amendment cases, but in representing Dole in the pesticide-injury lawsuits documented in Gertten's film, Boutrous says, he is now representing a plaintiff in a defamation case for the first time ever.